Case number: 120111

Whether the Hospital was justified in its decision to refuse a request for access to records made under section 7 of the FOI Act on the basis that section 10(1)(a) of the FOI Act applies.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (FOI Act)

Background

During the course of dealing with correspondence from the applicant concerning a previous FOI request, the Hospital's Official Ms B, wrote to the applicant on 15 September 2010. In that letter, she referred to records of the applicant's [Hospital] appointments and she informed the applicant of the following:

"I note that Mr C has written to your GP in reference to appointments offered and those not attended".

On 14 March 2012, the applicant made a request to the Hospital under section 7 of the FOI Act for access to a copy of the letter written by Mr C to his GP. He also sought copies of records which supported the Hospital's position that his complaint of 22 December 2010 to the Hospital had already been dealt with, given that part of his complaint referred to the statement contained in the letter of 15 September 2010 and that he had never been given a copy of Mr C's letter. Furthermore, the applicant sought copies of records relating to a meeting between a Ms D and Official E at which a decision was taken to withhold the applicant's email of 8 December 2010 from Mr C and he sought further information concerning the withholding of the email from Mr C.

On 18 April 2012, the applicant applied for an internal review as he had not received a decision within the time-frame specified in the FOI Act. It is worth noting at this stage, that some confusion arose within the Hospital during the processing of the applicant's request as he had earlier submitted a similar, although not identical, request to the Hospital on 29 February 2012. The Hospital issued a decision on the earlier request on 2 April 2012 and apparently failed to identify and treat the later correspondence of 14 March 2012 as a separate request. Indeed, it appears that there has been a significant exchange of correspondence between the applicant and the Hospital and the Hospital's confusion on this matter is not altogether surprising, particularly given the manner in which the applicant has framed his FOI requests. I note, for example, that there is a degree of overlap between his request of 29 February 2012 and his later request of 14 March 2012.

On 23 May 2012, the applicant applied to this Office for a review of the Hospital's failure to grant his FOI request as he did not receive a decision on internal review within the time-frame specified in the FOI Act. The Hospital subsequently issued a late decision by letter dated 6 June 2012, refusing access on the ground that the records sought do not exist or cannot be found.

On 8 March 2013, Mr Maurice Kiely, Investigator, informed the applicant of his preliminary view on the matter. In response the applicant sought and received clarification from Mr. Kiely regarding the status of Mr Kiely's letter and thereafter he requested that a formal binding decision be made. Therefore I have decided to conclude this review by issuing a formal binding decision. In conducting this review I have had regard to the provisions of the FOI Acts, to the relevant submissions of the Hospital and those of the applicant to this Office, and to the correspondence between the Hospital and the applicant on the matter.

Scope of the Review

As outlined above, the applicant's FOI request comprised various parts. I note, however, that those parts of his request relating to his email of 8 December 2010 also formed part of his request of 29 February 2012 and that the Hospital addressed these matters in its decision on that request. On the matter of the applicant's request for records relating to the statement contained in the Hospital's letter of 15 September 2010, I note that applicant has been given a copy of a record which the Hospital considers to be relevant to the request, which I will refer to further below, and that it is the Hospital's position that no further relevant records exist. I also note that the applicant has a copy of a further record, comprising a letter dated 27 April 2010 from the Hospital (Mr C) to his GP. As the Hospital has not claimed that this record is relevant to this request and as the applicant already has a copy it will not be considered in
this review. Accordingly, the scope of this review is concerned solely with the question of whether the Hospital was justified in deciding that no further relevant records exist or can be located after all reasonable steps have been taken to ascertain their whereabouts.

Analysis and Findings

A claim that no further records exist or can be found is, in effect, a claim that section 10(1)(a) of the FOI Act applies. That section provides as follows:

"(1) A head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

The role of this Office in relation to section 10(1)(a) has been commented upon by Mr Justice Quirke, in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.),which is available on this Office's website atwww.oic.ie. Quirke J. said he accepted that the then Commissioner's role in reviewing an FOI decision did not require the Commissioner to search for records. He said that the role of the Commissioner was "... rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision."

During the course of the review, Mr Kiely contacted the Hospital to request a copy of the letter dated 15 September 2010 which contains the statement upon which the FOI request was based. The Hospital initially indicated that it could not locate a copy of the record. I note, however, that the Hospital conducted searches within the Physiotherapy Department and Orthopaedic Departments. Given that the letter in question formed part of the correspondence created during the processing of the applicant's FOI requests, it may be that the Hospital simply overlooked this fact. In any event, the applicant subsequently provided a copy of the letter and this was forwarded to the Hospital to allow it to consider the question of what records might exist which led Ms B to state that Mr C had written to the applicant's GP in reference to appointments offered and those not attended.

Having considered the letter, Ms B informed this Office that the statement may have been prompted by a letter from Mr C to the applicant's GP and she undertook to forward a copy of that letter to this Office for consideration. The Hospital subsequently provided a copy of a letter dated 27 August 2010 from Mr C to the applicant's GP, Dr F. A copy of this letter was forwarded to the applicant. In response, the applicant indicated that he had, indeed, been given a copy of the letter in question previously on foot of a separate FOI request before he made the request which is the subject of this review. However, he stated that this was the first time the letter had been connected to the statement contained in Ms B's letter.

The applicant further contends that his GP did not receive a copy of the letter of 27 August 2010 and that it must be treated as a false document. He argues that Mr C previously indicated that he had no recollection of writing such a letter and he alleges that the letter produced was created afterwards to pass the blame for lack of medical treatment onto him. At this point, I must say that no evidence has been presented to this Office to support the applicant's allegations. I do not accept that Mr C's failure to recall the letter provides sufficient evidence to suggest that he did not write the letter at the time, particularly given the confusion which has arisen in the processing of the two similarly worded FOI requests and the references to numerous letters of various dates. The applicant has also requested that this Office contact his GP who would confirm that she did not receive a copy of the letter dated 27 August 2010. I have not done so as this will not address the issue of whether further relevant records exist.

On the matter of whether other relevant records exist, I note that Mr Kiely outlined the details of the searches undertaken by the Hospital to locate all relevant records and while I do not propose to repeat those details here, they are relevant for the purposes of this decision. It is important to note that the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the FOI Act. The FOI Act does not provide for an assessment of administrative practices in respect of record keeping by a public body; rather it provides for an assessment of the details of the steps taken by that public body to identify all relevant records.

As I have outlined above, Ms B has suggested that her statement that Mr C had written to the applicant's GP in reference to appointments offered and those not attended may have been prompted by Mr C's letter dated 27 August 2010. Having regard to the contents of that letter, Ms B's suggestion appears to be reasonable. In any event, the scope of this review is confined to considering whether the Hospital has carried out all reasonable steps to locate all relevant records coming within the scope of the applicant's request. Given the details provided to this Office by the Hospital of the nature of the searches undertaken to locate relevant records, I am satisfied that it has done so and I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Hospital in this case.

Right of Appeal

A party to a review, or any other person affected by the decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.


Stephen Rafferty
Senior Investigator
12 March 2013